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As filed with the Securities and Exchange Commission on February 23, 1998
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
__________________
HEALTH MANAGEMENT ASSOCIATES, INC.
(Exact name of registrant as specified in its charter)
Delaware 61-0963645
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5811 PELICAN BAY BOULEVARD, SUITE 500
NAPLES, FLORIDA 34108-2710
(941) 598-3131
(Address, including zip code, and telephone number, including area code, of
principal executive offices)
WILLIAM J. SCHOEN
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
HEALTH MANAGEMENT ASSOCIATES, INC.
5811 PELICAN BAY BOULEVARD, SUITE 500
NAPLES, FLORIDA 34108-2710
(941) 598-3131
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Susan Mascette Brandt, Esq.
Harter, Secrest & Emery LLP
700 Midtown Tower
Rochester, New York 14604-2070
(716) 231-1184
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE REGISTERED AMOUNT TO BE MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
REGISTERED (1) PRICE PER UNIT (2) PRICE (1)(3) REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities (4) $300,000,000 100% $300,000,000 $90,910
========================================================================================================================
</TABLE>
(1) In U.S. dollars or the equivalent thereof in one or more foreign currencies
or currency units or composite currencies, including the European Currency
Unit.
(2) The proposed maximum initial offering price per unit will be determined,
from time to time, by the Registrant.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(e). In no event will the aggregate initial offering
price of all securities issued from time to time pursuant to this
Registration Statement exceed $300,000,000.
(4) Subject to footnote (3), there are being registered hereunder an
indeterminate principal amount of Debt Securities as may be sold from time
to time by the Registrant. If any such Debt Securities are issued as an
original issue discount, then the offering price shall be such greater
principal amount as shall result in an aggregate initial offering price of
up to $300,000,000.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAW OF ANY SUCH STATE.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED FEBRUARY 23, 1998
PROSPECTUS
$300,000,000
HEALTH MANAGEMENT ASSOCIATES, INC.
DEBT SECURITIES
Health Management Associates, Inc. ("HMA" or the "Company") may offer from
time to time, together or separately, its senior unsecured debt securities (the
"Debt Securities"), consisting of debentures, notes, bonds and/or other
evidences of indebtedness in one or more series. The Debt Securities will be
offered at an aggregate initial offering price not to exceed U.S. $300,000,000
(or, if the principal of the Debt Securities is payable in a foreign currency,
the equivalent thereof at the time of sale), at prices and on terms to be
determined at the time of sale.
The accompanying Prospectus Supplement sets forth with regard to the
particular Debt Securities in respect of which this Prospectus is being
delivered the title, aggregate principal amount, denominations (which may be in
United States dollars or in any other currency, currencies or currency unit),
maturity, premium (if any), interest rate (which may be fixed or variable) or
method of calculation thereof and time of payment of any interest, place or
places where principal of (and premium, if any) and interest on such Debt
Securities will be payable, any terms for redemption at the option of the
Company or the holder, any terms for sinking fund payments, any listing on a
securities exchange, and the initial public offering price and any other terms
in connection with the offering and sale of such Debt Securities. The
Prospectus Supplement will also contain information, as applicable, about
certain United States federal income tax considerations relating to the Debt
Securities in respect of which this Prospectus is being delivered.
The Debt Securities will be unsecured obligations of the Company and will
rank on a parity with all other unsecured and unsubordinated indebtedness of the
Company. If so specified in the applicable Prospectus Supplement, all or a
portion of any Debt Securities may be issued in temporary or permanent global
form.
The Debt Securities may be offered directly to purchasers or to or through
underwriters, dealers or agents designated by the Company from time to time. If
any underwriters, dealers or agents are involved in the offering of the Debt
Securities, their names, the principal amounts, if any, to be purchased by
underwriters and any applicable fees, commissions or discount arrangements will
be set forth in the accompanying Prospectus Supplement. The net proceeds from
any sale of Debt Securities will also be set forth in the Prospectus Supplement.
See "Plan of Distribution."
_______________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
_______________________________
This Prospectus may not be used to consummate sales of Debt Securities
unless accompanied by a Prospectus Supplement.
The date of this Prospectus is _________________, 1998.
<PAGE>
NO DEALER, SALES PERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR IN THE ACCOMPANYING PROSPECTUS SUPPLEMENT, AND,
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER, AGENT OR DEALER. THIS
PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER
TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE DEBT
SECURITIES TO WHICH THEY RELATE OR AN OFFER TO SELL, OR A SOLICITATION OF AN
OFFER TO BUY, TO ANY PERSON IN ANY JURISDICTION WHERE SUCH OFFER OR SOLICITATION
WOULD BE UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS OR THE ACCOMPANYING
PROSPECTUS SUPPLEMENT, NOR ANY SALE MADE THEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE THE IMPLICATION THAT THE INFORMATION CONTAINED OR
INCORPORATED BY REFERENCE HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT
TO THEIR RESPECTIVE DATES.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities of the Commission, 7 World Trade
Center, New York, New York 10048; and Citicorp Center, Suite 1400, 500 West
Madison Street, Chicago, Illinois 60661; and copies of such materials can be
obtained from the public reference section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates (1-800-SEC-0330). The
Commission also maintains a Web site (http://www.sec.gov) which contains
reports, proxy and information statements and other information and documents
regarding the Company. In addition, such reports, proxy statements and other
information can be inspected and copied at the offices of the New York Stock
Exchange, Inc., 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a Registration Statement on Form
S-3 (the "Registration Statement") under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the Debt Securities offered hereby.
This Prospectus, which constitutes a part of the Registration Statement, does
not contain all the information set forth in the Registration Statement and
reference is hereby made to the Registration Statement and the exhibits thereto
for further information with respect to the Company and the Debt Securities.
Statements contained in this Prospectus as to the contents of certain documents
are not necessarily complete, and, with respect to each such document filed as
an exhibit to the Registration Statement or otherwise filed with the Commission,
reference is made to the copy of the document so filed. Each statement is
qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated herein by reference:
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1. Health Management Associates, Inc. Annual Report on Form 10-K for the
year ended September 30, 1997.
2. Health Management Associates, Inc. Quarterly Report on Form 10-Q for the
quarter ended December 31, 1997.
3. Health Management Associates, Inc. Definitive Proxy Statement relating
to its Annual Meeting of Stockholders held on February 17, 1998.
4. Health Management Associates, Inc. Current Report on Form 8-K dated
February 20, 1998.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus
and prior to the termination of the offering of the Debt Securities shall be
deemed to be incorporated herein by reference and to be a part of this
Prospectus from the date of filing of such document. Any statement contained
herein or in a document all or a portion of which is incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein or in the accompanying Prospectus Supplement
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will furnish without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon the request of such
person, a copy of any of the documents incorporated by reference herein, except
for the exhibits to such documents (unless such exhibits are specifically
incorporated by reference into such documents). Requests should be directed to
Health Management Associates, Inc., 5811 Pelican Bay Boulevard, Suite 500,
Naples, Florida 34108-2710, Attention: Office of General Counsel; telephone
number (941) 598-3131.
FORWARD-LOOKING STATEMENTS
This Prospectus, the accompanying Prospectus Supplement and the documents
incorporated herein and therein by reference may contain forward-looking
statements based on current expectations, estimates and projections about the
Company's industry, management's beliefs and assumptions made by management.
Words such as "anticipates," "expects," "intends," "plans," "believes," "seeks,"
"estimates" or variations of such words and similar expressions are intended to
identify such forward-looking statements. These statements are not guarantees
of future performance and are subject to certain risks, uncertainties and
assumptions that are difficult to forecast. Therefore, actual results may
differ materially from those expressed or forecast in any such forward-looking
statements. Such risks and uncertainties include, in addition to those set
forth herein or in the accompanying Prospectus Supplement, those noted in the
documents incorporated herein or therein by reference. The Company undertakes
no obligation to update
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publicly any forward-looking statements, whether as a result of new information,
future events or otherwise.
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THE COMPANY
Health Management Associates, Inc. ("HMA" or the "Company") provides a broad
range of general acute care health services in non-urban communities. As of
January 31, 1998, HMA operated 26 general acute care hospitals with a total of
3,328 licensed beds and four psychiatric hospitals with a total of 306 licensed
beds. Unless the context otherwise requires, references herein to HMA or the
Company include HMA and its consolidated subsidiaries.
The Company's principal executive office is located at 5811 Pelican Bay
Boulevard, Suite 500, Naples, Florida 34108-2710, and its telephone number at
such address is (941) 598-3131.
USE OF PROCEEDS
Unless otherwise described in the accompanying Prospectus Supplement, the
net proceeds from the sale of the Debt Securities will be used by the Company
for general corporate purposes, which may include refinancings of indebtedness,
acquisitions, capital expenditures, working capital, and repurchases and
redemptions of securities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges of the
Company for the periods indicated.
<TABLE>
<CAPTION>
Three Months
Ended
Year ended September 30, December 31,
(unaudited) (unaudited)
---------------------------- -------------
1993 1994 1995 1996 1997 1997
---- ---- ---- ---- ---- -------------
<S> <C> <C> <C> <C> <C> <C>
Consolidated ratio of earnings to fixed
charges (1)............................. 7.0 8.6 9.7 12.2 14.5 11.1
</TABLE>
(1) The ratio of earnings to fixed charges was computed by dividing the sum
of earnings before income taxes and fixed charges by fixed charges.
Fixed charges consist of interest expense, amortization of deferred
financing costs, amortization of debt premium/discount, and a portion of
operating lease rental expense which management believes to be
representative of the interest factor. The computation of the ratio has
not been audited for any of the periods indicated.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued in one or more series under an
Indenture (as amended or supplemented from time to time, the "Indenture"). The
term "Trustee" as used herein with respect to Debt Securities of any particular
series shall mean the Trustee with respect to the Debt Securities of such series
as set forth in the applicable Prospectus Supplement. The Indenture has been
filed as an exhibit to the Registration Statement of which this Prospectus is a
part and is subject to and governed by the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"). The following summary of certain
provisions of the Indenture and the Debt Securities
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does not purport to be complete and is subject to, and is qualified in its
entirety by reference to, the provisions of the Indenture, including the
definition therein of certain terms and of those terms made a part thereof by
the Trust Indenture Act. Capitalized terms used but not defined herein shall
have the respective meanings set forth in the Indenture.
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of each series of Debt
Securities offered by any Prospectus Supplement and the extent, if any, to which
such general provisions may apply to the Debt Securities so offered will be
described in the Prospectus Supplement relating to such series of Debt
Securities. Accordingly, for a description of the terms of a particular issue
of Debt Securities, reference must be made to both the Prospectus Supplement
relating thereto and the following description.
GENERAL
The Debt Securities will be senior unsecured obligations of the Company as
specified in the Prospectus Supplement relating thereto. The Indenture provides
that the Debt Securities may be issued without limit as to aggregate principal
amount, in one or more series, in each case in such forms and with such terms as
are established for the Debt Securities of such series in or pursuant to Board
Resolutions, Officers' Certificates or indentures supplemental to the Indenture
("Supplemental Indentures"). All Debt Securities of one series need not be
issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of any Holder, for issuances of additional Debt
Securities of such series. The Indenture provides that there may be more than
one Trustee thereunder, each with respect to one or more series of Debt
Securities.
Reference is made to the Prospectus Supplement relating to the Debt
Securities of each series for the following terms, where applicable, of the Debt
Securities of such series: (1) the title of such Debt Securities; (2) the
aggregate principal amount of such Debt Securities and any limit on the
aggregate principal amount of such Debt Securities; (3) the Person to whom any
interest on such Debt Securities shall be payable, if other than the Person in
whose name a Debt Security is registered at the close of business on the Regular
Record Date for such interest; (4) the date or dates, or the method by which
such date or dates will be determined, on which the principal of such Debt
Securities is payable; (5) the rate or rates (which may be fixed or variable) at
which such Debt Securities will bear interest, if any, or the method or methods
by which such rate or rates shall be determined, the date or dates from which
such interest will accrue, the Interest Payment Date on which any such interest
shall be payable and the Regular Record Date for any interest payable on any
Interest Payment Date, or the method or methods by which such date or dates
shall be determined, and the basis upon which interest shall be calculated if
other than that of a 360-day year of twelve 30-day months; (6) the place or
places where principal of and any premium and interest on such Debt Securities
shall be payable; (7) the period or periods within which, the price or prices at
which, the currency or currencies, currency unit or composite currency in which,
and the other terms and conditions upon which, such Debt Security may be
redeemed, in whole or in part, at the option of the Company; (8) the right or
obligation, if any, of the Company to redeem, repay or purchase such Debt
Securities pursuant to any optional redemption, sinking fund or analogous
provisions or at the option of a Holder thereof or otherwise, and the period or
periods within which, the price or prices at
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which, the currency or currencies, currency unit or composite currency in which,
and the other terms and conditions upon which such Debt Securities shall be so
redeemed, repaid or purchased; (9) the right of the Company to defease such Debt
Securities or certain restrictive covenants applicable thereto and certain
Events of Default under certain circumstances (see "--Defeasance or Covenant
Defeasance of Indenture"); (10) if other than in United States dollars, the
currency or currencies, currency unit or composite currency, of payment of
principal of and any premium and interest on such Debt Securities and the
equivalent thereof in United States dollars; (11) any index, formula or other
method used to determine the amount of payments of principal of or any premium
or interest on such Debt Securities; (12) whether such Debt Securities are
issuable as registered securities, bearer securities or both, whether such Debt
Securities are issuable initially in temporary global form and whether any such
Debt Securities are issuable in permanent global form with or without coupons;
(13) if such Debt Securities will be issuable in the form of global securities
as described under "--Global Securities," the Depository or its nominee with
respect to such Debt Securities and the circumstances under which any such
global security may be registered for transfer or exchanged, or authenticated
and delivered, in the name of a Person other than the Depository or its nominee;
(14) if the principal of or any premium or interest on such Debt Securities is
to be payable, at the election of the Company or a Holder thereof, in a currency
or currencies, currency unit or composite currency other than that in which such
Debt Securities are denominated or stated to be payable, the terms and
conditions upon which such election may be made; (15) if other than the entire
principal amount thereof, the portion of the principal amount of such Debt
Securities which shall be payable upon declaration of acceleration of the
Maturity thereof; (16) provisions, if any, granting special rights to the
Holders of such Debt Securities upon the occurrence of such events as may be
specified; (17) any deletions from, modifications of or additions to the Events
of Default or covenants of the Company with respect to such Debt Securities,
whether or not such Events of Default or covenants are consistent with the
Events of Default or covenants set forth herein; (18) the obligation, if any, of
the Company to list the Debt Securities on a securities exchange; and (19) any
other terms of the Debt Securities.
The Debt Securities may provide for less than the entire principal amount
thereof to be payable upon declaration of acceleration of the Maturity thereof
("Original Issue Discount Securities"). Special United States federal income
tax, accounting and other considerations applicable to Original Issue Discount
Securities will be described in the applicable Prospectus Supplement.
RANKING
The Debt Securities constitute senior unsecured obligations of the Company
and will rank on a parity with all other unsecured and unsubordinated
indebtedness of the Company. The Company is a holding company and derives its
operating income and cash flow from its subsidiaries. The Company relies
entirely upon distributions from its subsidiaries to generate the funds
necessary to meet its obligations, including the payment of principal of and any
premium and interest on the Debt Securities. The ability of the Company's
subsidiaries to make such payments will be subject to, among other things,
applicable state laws and any restrictions that may be contained in credit
agreements or other financing arrangements entered into by such subsidiaries.
Claims of creditors of the Company's subsidiaries will generally have priority
as to the assets of such subsidiaries over the claims of the Company and the
holders of the
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Company's indebtedness, including the Debt Securities. As of December 31, 1997,
the total amount of outstanding secured and unsecured indebtedness of these
subsidiaries, excluding guarantees of the Company's indebtedness, was
$56,375,000. In addition, indebtedness under the Company's unsecured revolving
credit facility is guaranteed by the Company's subsidiaries. As of December 31,
1997, no amounts were outstanding under that facility.
Except as otherwise specified in an applicable Supplemental Indenture and
Prospectus Supplement, there are no limitations in the Indenture on the amount
of additional indebtedness which may rank on a parity with the Debt Securities
or on the amount of other indebtedness, secured or otherwise, which may be
incurred by the Company or any of its subsidiaries.
DENOMINATIONS, INTEREST, REGISTRATION AND TRANSFER
Unless otherwise described in the applicable Prospectus Supplement, the Debt
Securities of any series will be issuable in denominations of $1,000 and
integral multiples thereof.
Unless otherwise specified in the applicable Prospectus Supplement, the
principal of and any premium and interest on any series of Debt Securities will
be payable at the corporate trust office of the Trustee, provided that, at the
option of the Company, payment of interest may be made by check mailed to the
address of the Person entitled thereto as it appears in the Security Register.
Unless otherwise indicated in the applicable Prospectus Supplement, payment of
any installment of interest on Debt Securities will be made to the Person in
whose name such Debt Security is registered at the close of business on the
Regular Record Date of such interest.
Any interest not punctually paid or duly provided for on any Interest
Payment Date with respect to a Debt Security ("Defaulted Interest") will
forthwith cease to be payable to the Holder on the applicable Regular Record
Date and may either be paid to the Person in whose name such Debt Security is
registered at the close of business on a special record date (the "Special
Record Date") for the payment of such Defaulted Interest to be fixed by the
Trustee (notice whereof shall be given to the Holder of such Debt Security not
less than 10 days prior to such Special Record Date), or may be paid at any time
in any other lawful manner, all as more completely described in the Indenture.
Subject to certain limitations imposed upon Debt Securities issued in global
form, the Debt Securities of any series will be exchangeable for other Debt
Securities of the same series and of a like aggregate principal amount and tenor
of different authorized denominations upon surrender of such Debt Securities at
the corporate trust office of the Trustee. In addition, subject to certain
limitations imposed upon Debt Securities issued in global form, the Debt
Securities of any series may be surrendered for registration of transfer thereof
at the corporate trust office of the Trustee. Every Debt Security surrendered
for registration of transfer or exchange shall be duly endorsed or accompanied
by a written instrument of transfer. No service charge will be made for any
registration of transfer or exchange of any Debt Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. If the applicable Prospectus Supplement
refers to any transfer agent (in addition to the Trustee) initially designated
by the Company with respect to any series of Debt Securities, the Company may at
any time rescind the designation of any such transfer agent or approve a change
in the location
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through which any such transfer agent acts, except that the Company will be
required to maintain a transfer agent in each Place of Payment for such series,
which shall include the City of New York. The Company may at any time designate
additional transfer agents with respect to any series of Debt Securities.
Neither the Company nor the Trustee shall be required to (1) issue, register
the transfer of or exchange Debt Securities of any series if such Debt Security
may be among those selected for redemption, during a period beginning at the
opening of business 15 days before any selection of Debt Securities of that
series to be redeemed and ending at the close of business on the day of mailing
of the relevant notice of redemption; or (2) register the transfer of or
exchange any Debt Security, or portion thereof, called for redemption in whole
or in part, except the unredeemed portion of any Debt Security being redeemed in
part.
COVENANTS
The particular covenants, if any, relating to any series of Debt Securities
will be described in the Prospectus Supplement relating to such series. If any
such covenants are described, the Prospectus Supplement will also state whether
the "covenant defeasance" provisions described below also apply.
EVENTS OF DEFAULT
Under the Indenture, an Event of Default is defined (with respect to each
series of Debt Securities individually, unless it is either inapplicable to a
particular series or is specifically deleted or modified for Debt Securities of
a particular series, as described in a Prospectus Supplement) as any of the
following: (1) default in the payment of the principal of, or premium, if any,
on any of the Debt Securities of such series at Maturity (upon acceleration,
redemption, required repurchase or otherwise); (2) default in the payment of an
installment of interest on any Debt Security of such series when the same
becomes due and payable, and continuance of such default for a period of 30
days; (3) default in the deposit of a sinking fund payment, if any, when and as
due by the terms of a Debt Security of such series; (4) default in the
performance or breach of any covenant or warranty of the Company contained in
the Debt Securities of such series or the Indenture for the benefit of the
Holders of Debt Securities of such series (other than a default otherwise
specifically dealt with in the Indenture or in any Supplemental Indenture), and
continuance of such default or breach for a period of 60 days after written
notice of such failure requiring the Company to remedy the same shall have been
given (A) to the Company by the Trustee or (B) to the Company and the Trustee by
the Holders of at least 25% in aggregate principal amount of the Debt Securities
of such series then outstanding; (5) certain events of bankruptcy, insolvency or
reorganization relating to the Company; and (6) any other Event of Default set
forth in an applicable Supplemental Indenture and Prospectus Supplement relating
to the Debt Securities of such series.
The Indenture provides that if an Event of Default specified therein shall
have occurred and is continuing with respect to any series of the Debt
Securities issued thereunder, the Trustee or the Holders of at least 25% in
aggregate principal amount of the outstanding Debt Securities of such series may
declare the unpaid principal amount of the Debt Securities of such series (or,
if any of the Debt Securities are Original Issue Discount Securities, such
portion of the principal
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amount of the Debt Securities of such series as may be specified by the terms
thereof) and accrued interest, if any, to the date of payment of the Debt
Securities of such series to be immediately due and payable.
After a declaration of acceleration under the Indenture in respect of a
series of Debt Securities, but before a judgment or decree for payment of the
money due has been obtained by the Trustee, the Holders of a majority in
aggregate outstanding principal amount of such series of Debt Securities, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if (1) the Company has paid or deposited with
the Trustee a sum sufficient to pay (A) all overdue interest, if any, on all
Debt Securities of such series, (B) the principal of and premium, if any, on
such series of Debt Securities which have become due otherwise than by such
declaration of acceleration, and interest thereon at the rate prescribed
therefor in such series of Debt Securities, (C) to the extent that payment of
such interest is lawful, interest upon overdue interest at the rate prescribed
therefor in such series of Debt Securities, and (D) all amounts owing the
Trustee pursuant to the Indenture in respect of the Debt Securities of that
series; and (2) all Events of Default with respect to Debt Securities of such
series, other than the non-payment of principal of, premium, if any, and
interest on Debt Securities of such series which have become due solely by such
declaration of acceleration, have been cured or waived.
The Holders of not less than a majority in aggregate outstanding principal
amount of a series of Debt Securities may on behalf of all Holders of such
series of Debt Securities waive any existing or past Default or Event of
Default with respect to the Debt Securities of such series and its consequences,
except a default in the payment of the principal of, premium, if any, or
interest on any Debt Security of such series or in respect of a covenant or
provision which under the terms of the Indenture cannot be modified or amended
without the consent of the Holder of each outstanding Debt Security of such
series.
No Holder of Debt Securities of any series has any right to institute any
proceeding with respect to the Indenture or any remedy thereunder unless the
Holders of at least 25% in aggregate outstanding principal amount of such
series of Debt Securities have made written request, and offered reasonable
indemnity, to the Trustee to institute such proceedings as Trustee under such
series and the Indenture, the Trustee has failed to institute such proceeding
within 60 days after receipt of such notice, and the Trustee, within such 60-day
period, has not received directions inconsistent with such written request by
Holders of a majority in aggregate outstanding principal amount of such series
of Debt Securities. Such limitations do not apply, however, to a suit
instituted by a Holder of a Debt Security for the enforcement of the payment of
the principal of, premium, if any, or interest on such Debt Security on or after
the respective due dates expressed in such Debt Security.
During the existence of an Event of Default, the Trustee is required to
exercise such rights and powers vested in it under the Indenture and to use the
same degree of care and skill in its exercise thereof as a prudent person would
exercise under the circumstances in the conduct of such person's own affairs.
Subject to the provisions of the Indenture relating to the duties of the
Trustee, in case an Event of Default shall occur and be continuing, the Trustee
is not under any obligation to exercise any of its rights or powers under the
Indenture at the request or direction of any of the Holders unless such Holders
shall have offered to the Trustee reasonable
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security or indemnity. Subject to certain provisions concerning the rights of
the Trustee, the Holders of a majority in aggregate outstanding principal amount
of any series of Debt Securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee under the Indenture, in
respect of such series.
DEFEASANCE OR COVENANT DEFEASANCE OF INDENTURE
Unless and to the extent otherwise indicated in an applicable Prospectus
Supplement, the Company may, at its option and at any time, terminate its
obligations with respect to any series of outstanding Debt Securities
("defeasance"). Such defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by the outstanding Debt
Securities of such series, and the provisions of the Indenture as it relates to
such outstanding Debt Securities shall no longer be in effect, except for (1)
the rights of Holders of such series of outstanding Debt Securities to receive
from trust funds payment of the principal of, premium, if any, and interest on
such Debt Securities when such payments are due, (2) the Company's obligations
to register the transfer or exchange of any Debt Securities of such series,
replace mutilated, destroyed, lost or stolen Debt Securities of such series and
maintain an office or agency for payments in respect of the Debt Securities of
such series, (3) the rights, power, trusts, duties and immunities of the
Trustee, and (4) the defeasance provisions of the Indenture. In addition,
unless and to the extent otherwise indicated in an applicable Prospectus
Supplement, the Company may, at its option and at any time, elect to terminate
its obligations with respect to one or more covenants that are set forth in the
Indenture or in a Supplemental Indenture and Prospectus Supplement, and any
omission to comply with such obligations shall not constitute a Default or an
Event of Default with respect to such series of Debt Securities ("covenant
defeasance"). In the event covenant defeasance occurs, certain events (other
than non-payment, bankruptcy and insolvency events) described under "--Events of
Default" will no longer constitute an Event of Default with respect to the Debt
Securities of such series.
In order to exercise either defeasance or covenant defeasance with respect
to any series of Debt Securities: (1) the Company must irrevocably deposit with
the Trustee, in trust, for the benefit of the Holders of Debt Securities of such
series, funds in such currency or currencies, currency unit or composite
currency in which such Debt Securities are payable (or with respect to Debt
Securities denominated in United States dollars, U.S. Government Obligations (as
defined in the Indenture), or a combination thereof), in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent public
accountants or a nationally recognized investment banking firm, to pay and
discharge the principal of, premium, if any, and interest on the outstanding
Debt Securities of such series on each applicable Stated Maturity (or on any
date after such date to be specified in a Supplemental Indenture and Prospectus
Supplement, such date being referred to as the "Defeasance Redemption Date");
(2) in the case of defeasance, the Company shall have delivered to the Trustee
an opinion of independent counsel to the Company in the United States stating
that (A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of the Indenture, there
has been a change in the applicable federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the Holders
of the outstanding Debt Securities of such series will not recognize income,
gain or loss for federal income tax purposes as a result of such defeasance and
will be subject to federal income taxes on the same amounts, in the same manner
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and at the same times as would have been the case if such defeasance had not
occurred; (3) in the case of covenant defeasance, the Company shall have
delivered to Trustee an opinion of independent counsel in the United States to
the effect that the Holders of the outstanding Debt Securities of such series
will not recognize income, gain or loss for federal income tax purposes as a
result or such covenant defeasance and will be subject to federal income taxes
on the same amounts, in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred; (4) no Default or Event
of Default with respect to such series shall have occurred and be continuing on
the date of such deposit or, insofar as certain events of bankruptcy, insolvency
or reorganization of the Company are concerned, at any time during the period
ending on the 91st day after the date of deposit; (5) such defeasance or
covenant defeasance shall not cause the Trustee to have a conflicting interest
with respect to any securities of the Company; (6) such defeasance or covenant
defeasance shall not result in a breach or violation of, or constitute a default
under, any material agreement or instrument to which the Company is a party or
by which it is bound; (7) such defeasance or covenant defeasance shall not
result in the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act of 1940, as amended, unless
such trust shall be registered under such Act or exempt from registration
thereunder; and (8) the Company shall have delivered to the Trustee an officers'
certificate and an opinion of counsel, each stating that all conditions
precedent under the Indenture to either defeasance or covenant defeasance, as
the case may be, have been complied with.
SATISFACTION AND DISCHARGE
Unless otherwise indicated in an applicable Prospectus Supplement, the
provisions of the Indenture applicable to any series of Debt Securities will be
discharged and will cease to be of further effect (except as to surviving rights
of registration of transfer or exchange of Debt Securities of such series, as
expressly provided for in the Indenture or a Supplemental Indenture) as to all
outstanding Debt Securities of such series when: (1) either (A) all the Debt
Securities of such series theretofore authenticated and delivered (except lost,
stolen or destroyed Debt Securities which have been replaced or paid and Debt
Securities for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust) have been delivered to the Trustee for
cancellation, or (B) all Debt Securities of such series not theretofore
delivered to the Trustee for cancellation (i) have become due and payable, (ii)
will become due and payable at their Maturity within one year, or (iii) if
redeemable at the option of the Company, are to be called for redemption within
one year under arrangements satisfactory to the Trustee, and the Company, in the
case of clause (i), (ii) or (iii), has deposited with the Trustee trust funds in
an amount sufficient to pay and discharge the entire indebtedness on the Debt
Securities of such series not theretofore delivered to the Trustee for
cancellation, for principal of, premium, if any, and interest on the Debt
Securities of such series to the date of deposit (in the case of Debt Securities
which have become due and payable) or to the Stated Maturity or Redemption Date,
as the case may be; (2) the Company has paid all other sums payable by the
Company under the Indenture; and (3) the Company has delivered to the Trustee an
officers' certificate and opinion of counsel stating that all conditions
precedent under the Indenture relating to the satisfaction and discharge of the
Indenture applicable to Debt Securities of such series have been complied with.
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MODIFICATION OF THE INDENTURE
Modifications and amendments of the Indenture may be made by the Company and
the Trustee with the consent of the Holders of a majority in aggregate principal
amount of the outstanding Debt Securities of each series affected by such
modification or amendment; provided that no such modification or amendment,
without the consent of the Holders of each of the Debt Securities affected
thereby, may: (1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Debt Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to the terms of the
Indenture, or change any place of payment where, or the currency or currencies,
currency unit or composite currency in which, any Debt Security or any premium
or interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date); (2) reduce the
percentage in principal amount of the outstanding Debt Securities of any series,
the consent of whose Holders is required for any such Supplemental Indenture, or
the consent of whose Holders is required for any waiver of compliance with
certain provisions of the Indenture or certain defaults thereunder and their
consequences provided for in the Indenture; (3) modify any of the provisions
relating to Supplemental Indentures, waiver of past or existing defaults or
waiver of certain covenants, except to increase any such percentage or to
provide that certain other provisions of the Indenture cannot be modified or
waived without the consent of the Holder of each outstanding Debt Security
affected thereby; or (4) make such other changes as may require such consent
pursuant to any Supplemental Indenture.
Modifications and amendments of the Indenture may be made by the Company and
the Trustee without the consent of any Holder of Debt Securities when authorized
by a resolution of the Company's Board of Directors for any of the following
purposes: (1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company in the
Indenture and in the Debt Securities as obligor under the Indenture; (2) to add
to the covenants of the Company for the benefit of the Holders of all or any
series of Debt Securities or to surrender any right or power conferred upon the
Company in the Indenture; (3) to add any additional Events of Default; (4) to
add or change any provisions of the Indenture to such extent as shall be
necessary to permit or facilitate the issuance of Debt Securities in bearer
form, registerable or not registrable as to principal, and with or without
interest coupons, or to permit or facilitate the issuance of Debt Securities in
an uncertificated form; (5) to add to, change or eliminate any of the provisions
of the Indenture in respect of one or more series of Debt Securities, provided
that any such addition, change or elimination (A) shall neither (i) apply to any
Debt Security of any series created prior to the execution of such Supplemental
Indenture and entitled to the benefit of such provision, nor (ii) modify the
rights of the Holder of any such Debt Security with respect to such provision,
or (B) shall become effective only when there is no such Debt Security
outstanding; (6) to establish the form or terms of Debt Securities of any series
as permitted by the Indenture; (7) to evidence and provide for the acceptance of
appointment under the Indenture by a successor Trustee with respect to the Debt
Securities of one or more series and to add to or change any of the provisions
of the Indenture as shall be necessary to provide for or facilitate the
administration of the trusts under the Indenture by more than one Trustee; (8)
to supplement any of the provisions of the Indenture
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to such extent as shall be necessary to permit or facilitate the defeasance or
covenant defeasance and discharge of the Debt Securities of any series pursuant
to the Indenture, provided that any such action shall not adversely affect the
interests of the Holders of Debt Securities of such series or any other series
of Debt Securities in any material respect; (9) to comply with the requirements
of the Commission in order to effect or maintain the qualification of the
Indenture under the Trust Indenture Act; or (10) to cure any ambiguity, to
correct or supplement any provision in the Indenture or in any Supplemental
Indenture which may be inconsistent with any other provision therein, or to make
any other provisions with respect to matters or questions arising under the
Indenture, provided that such action shall not adversely affect the interests of
the Holders of the Debt Securities of any series in any material respect.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities that will be deposited with, or on behalf
of, a Depository identified in the applicable Prospectus Supplement relating to
such series. In such case, one or more book-entry securities will be issued in
a denomination or aggregate denominations equal to the portion of the aggregate
principal amount of the outstanding Debt Securities of the series to be
represented by such global securities. If and to the extent provided in a
Supplemental Indenture and Prospectus Supplement, global securities may be
issued in either registered or bearer form and in either temporary or permanent
form. The specific terms of the depository arrangement with respect to a series
of Debt Securities will be described in the applicable Prospectus Supplement
relating to such series.
THE TRUSTEE
The Indenture provides that, except during the continuance of an Event of
Default, the Trustee will perform only such duties as are specifically set forth
in the Indenture. If an Event of Default has occurred and is continuing, the
Trustee will exercise such rights and powers vested in it under the Indenture
and use the same degree of care and skill in its exercise as a prudent person
would exercise under the circumstances in the conduct of such person's own
affairs.
The Indenture and provisions of the Trust Indenture Act incorporated by
reference therein contain limitations on the rights of the Trustee, should it
become a creditor of the Company, to obtain payment of claims in certain cases
or to realize on certain property received by it in respect of any such claims,
as security or otherwise. The Trustee is permitted to engage in other
transactions; provided, however, that if it acquires any conflicting interest
(as defined), it must eliminate such conflict or resign.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by the laws of the
State of New York, without regard to its principles of conflicts of law.
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PLAN OF DISTRIBUTION
The Company may offer the Debt Securities directly to purchasers or to or
through underwriters, dealers or agents designated by the Company from time to
time. Any such underwriter(s), dealer(s), or agent(s) involved in the offer and
sale of the Debt Securities in respect of which this Prospectus is delivered
will be named in the accompanying Prospectus Supplement. The Prospectus
Supplement with respect to such Debt Securities will also set forth the terms of
the offering of such Debt Securities, including the purchase price of such Debt
Securities and the proceeds to the Company from such sale, any underwriting
discounts and other items constituting underwriters' compensation, any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers, and any securities exchanges on which such Debt Securities may
be listed.
If underwriters are used in an offering of Debt Securities, the name of each
managing underwriter, if any, and any other underwriters and the terms of the
transaction, including any underwriting discounts and other items constituting
compensation of the underwriters and dealers, if any, will be set forth in the
Prospectus Supplement relating to such offering and the Debt Securities will be
acquired by the underwriters for their own accounts and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
Any initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time. It is
anticipated that any underwriting agreement pertaining to any Debt Securities
will (i) entitle the underwriters to indemnification by the Company against
certain civil liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments which the underwriters may be required to
make in respect thereof, (ii) provide that the obligations of the underwriters
will be subject to certain conditions precedent, and (iii) provide that the
underwriters will be obligated to purchase all Debt Securities offered in a
particular offering if any such Debt Securities are purchased.
If a dealer is used in an offering of Debt Securities, the Company will sell
such Debt Securities to the dealer, as principal. The dealer may resell such
Debt Securities to the public at varying prices to be determined by such dealer
at the time of resale. The name of the dealer and the terms of the transaction
will be set forth in the Prospectus Supplement relating thereto. If an agent is
used in an offering of Debt Securities, the agent will be named, and the terms
of the agency will be set forth, in the Prospectus Supplement relating thereto.
Dealers and agents named in an applicable Prospectus Supplement may be
deemed to be underwriters (within the meaning of the Securities Act) of the Debt
Securities described therein and, under agreements which may be entered into
with the Company, may be entitled to indemnification by the Company against
certain civil liabilities, including liabilities under the Securities Act.
Underwriters, dealers and agents may engage in transactions with, or perform
services for, the Company in the ordinary course of business.
If so indicated in an applicable Prospectus Supplement, the Company will
authorize underwriters or other agents of the Company to solicit offers by
certain institutional investors to purchase Debt Securities from the Company
pursuant to contracts providing for payment and delivery at a future date.
Institutional investors with which such contracts may be made include
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commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and others, but in all cases
such purchasers must be approved by the Company. The obligations of any
purchaser under any such contract will not be subject to any conditions except
that the purchase of the Debt Securities shall not at the time of delivery be
prohibited under the laws of any jurisdiction to which such purchaser is
subject. Underwriters and other agents will not have any responsibility in
respect of the validity or performance of such contracts.
The anticipated date of delivery of any series of Debt Securities will be
set forth in the Prospectus Supplement relating to each offering.
VALIDITY OF DEBT SECURITIES
The validity of the Debt Securities offered will be passed upon for the
Company by Harter, Secrest & Emery LLP, Rochester, New York.
EXPERTS
The consolidated financial statements and schedule of Health Management
Associates, Inc. appearing in Health Management Associates, Inc.'s Annual Report
(Form 10-K) for the year ended September 30, 1997, have been audited by Ernst &
Young LLP, independent certified public accountants, as set forth in their
report thereon included therein and incorporated herein by reference. Such
consolidated financial statements and schedule are incorporated herein by
reference in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
16
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following sets forth expenses, other than underwriting fees and
commissions, expected to be borne by the Registrant in connection with the
distribution of the securities being registered:
Securities and Exchange Commission registration fee.. $ 90,910
Blue Sky fees and expenses........................... 20,000
NASD fees............................................ 30,500
Rating agency fees................................... 100,000
Legal fees and expenses.............................. 50,000
Printing expenses.................................... 50,000
Accounting fees and expenses......................... 6,000
Miscellaneous........................................ 27,590
---------
Total............................................ $375,000*
=========
* All amounts listed above, except for the registration fee and NASD fee,
are estimates.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article 11 of the Registrant's Fifth Restated Certificate of Incorporation,
as amended (the "Restated Certificate") provides that the Registrant shall
indemnify its directors and officers to the fullest extent authorized by the
Delaware General Corporation Law (the "DGCL").
With respect to indemnification of directors and officers, Section 145 of
the DGCL provides that a corporation shall have the power to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Under this provision of
the DGCL, the termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was unlawful.
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Furthermore, the DGCL provides that a corporation shall have the power to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery or such other court shall deem proper.
Article 10 of the Restated Certificate contains a provision, authorized by
Section 102(b) of the DGCL, which provides that a director of the Registrant
shall not be personally liable to the Registrant or its shareholders for
monetary damages for a breach of fiduciary duty as a director, except for
liability of the director (a) for any breach of the director's duty of loyalty
to the Registrant or its shareholders, (b) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of the law,
(c) under Section 174 of the DGCL, relating to the payment of unlawful dividends
or unlawful stock repurchases or redemptions, or (d) for any transaction from
which the director derived an improper personal benefit.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions or otherwise, the Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in their successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
ITEM 16. EXHIBITS
+1.1 Form of Underwriting Agreement
*4.1 Form of Indenture for Debt Securities
+5.1 Opinion of Harter, Secrest & Emery LLP
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*12.1 Statement regarding computation of ratios
*23.1 Consent of Ernst & Young LLP
+23.2 Consent of Harter, Secrest & Emery LLP (to be contained in Exhibit
5.1)
*24.1 Power of Attorney
+25.1 Statement of Eligibility of Trustee on Form T-1 with respect to the
Debt Securities
______________________________
* Filed herewith.
+ To be filed by Amendment or as an Exhibit to a document to be incorporated
by reference herein in connection with an offering of the offered
securities.
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section
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13 or 15(d) of the Securities Exchange Act of 1934, that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses is incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
(i) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For purposes of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
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(j) The undersigned Registrant hereby undertakes to file an application for
the purpose of determining the eligibility of Trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulation prescribed by the Commission under Section 305(b)(2) of the Act.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Naples, State of Florida, on February 23, 1998.
HEALTH MANAGEMENT ASSOCIATES, INC.
By: /s/ Joseph V. Vumbacco
______________________
Joseph V. Vumbacco
President and Chief Operating Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
Chairman, Chief Executive February 23, 1998
____________________________ Officer and Director
William J. Schoen* (Principal Executive Officer)
/s/ Stephen M. Ray Senior Vice President and February 23, 1998
____________________________ Chief Financial Officer (Prin-
Stephen M. Ray cipal Financial Officer and
Principal Accounting Officer)
Director February 23, 1998
____________________________
Kent P. Dauten*
Director February 23, 1998
____________________________
Robert A. Knox*
Director February 23, 1998
____________________________
Charles R. Lees*
Director February 23, 1998
____________________________
Kenneth D. Lewis*
Director February 23, 1998
____________________________
William E. Mayberry, M.D.*
February 23, 1998
*By: /s/ Timothy R. Parry
____________________
Timothy R. Parry,
attorney-in-fact
II-6
<PAGE>
INDEX TO EXHIBITS
+1.1 Form of Underwriting Agreement
*4.1 Form of Indenture for Debt Securities
+5.1 Opinion of Harter, Secrest & Emery LLP
*12.1 Statement regarding computation of ratios
*23.1 Consent of Ernst & Young LLP
+23.2 Consent of Harter, Secrest & Emery LLP (to be contained in Exhibit
5.1)
*24.1 Power of Attorney
+25.1 Statement of Eligibility of Trustee on Form T-1 with respect to the
Debt Securities
______________________________
* Filed herewith.
+ To be filed by Amendment or as an Exhibit to a document to be incorporated by
reference herein in connection with an offering of the offered securities.
II-7
<PAGE>
EXHIBIT 4.1
HEALTH MANAGEMENT ASSOCIATES, INC., AS ISSUER
AND
[ ], AS TRUSTEE
__________
INDENTURE
DATED AS OF _____, 1998
__________
<PAGE>
HEALTH MANAGEMENT ASSOCIATES, INC.
Certain Sections of this Indenture relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939:
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
(S)310(a)(1) ..................................................... 609
(a)(2) ..................................................... 609
(a)(3) .......................................... Not Applicable
(a)(4) .......................................... Not Applicable
(a)(5) ..................................................... 609
(b) ................................................ 608, 610
(S)311(a) ..................................................... 613
(b) ..................................................... 613
(c) .......................................... Not Applicable
(S)312(a) ............................................... 701, 702(a)
(b) .................................................. 702(b)
(c) .................................................. 702(c)
(S)313(a) .................................................... 703(a)
(b) .................................................. 703(a)
(c) .................................................. 703(a)
(d) .................................................. 703(b)
(S)314(a)(1)-(3) .................................................. 704
(a)(4) ............................................... 101, 1005
(b) .......................................... Not Applicable
(c)(1) ..................................................... 102
(c)(2) ..................................................... 102
(c)(3) .......................................... Not Applicable
(d) .......................................... Not Applicable
(e) ..................................................... 102
(S)315(a) ...................................................... 60
(b) ..................................................... 602
(c) ..................................................... 601
(d) ................................................ 601, 603
(e) ..................................................... 514
(S)316(a)(last sentence) ........................................... 101
(a)(1)(A) ............................................. 502, 512
(a)(1)(B) .................................................. 513
(a)(2) .......................................... Not Applicable
(b) ..................................................... 508
(c) .................................................. 104(c)
(S)317(a)(1) ..................................................... 503
(a)(2) ..................................................... 504
(b) .................................................... 1003
(S)318(a) ..................................................... 107
__________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions................................................ 1
Act ............................................................ 2
Affiliate......................................................... 2
Authenticating Agent.............................................. 2
Bankruptcy Law.................................................... 2
Board of Directors................................................ 2
Board Resolution.................................................. 2
Book-Entry Security............................................... 2
Business Day...................................................... 2
Commission........................................................ 2
Company........................................................... 2
Company Request................................................... 2
Company Order..................................................... 2
Corporate Trust Office............................................ 3
Default........................................................... 3
Defaulted Interest................................................ 3
Depositary........................................................ 3
Event of Default.................................................. 3
Exchange Act...................................................... 3
Holder............................................................ 3
Indenture......................................................... 3
Indexed Security.................................................. 4
Interest.......................................................... 4
Interest Payment Date............................................. 4
Maturity.......................................................... 4
Officers' Certificate............................................. 4
Opinion of Counsel................................................ 4
Original Issue Discount Security.................................. 4
Outstanding....................................................... 4
Paying Agent...................................................... 5
Person............................................................ 5
Place of Payment.................................................. 5
Predecessor Security.............................................. 5
Redemption Date................................................... 6
Redemption Price.................................................. 6
Regular Record Date............................................... 6
Responsible Officer............................................... 6
Security.......................................................... 6
Security Register................................................. 6
Security Registrar................................................ 6
Special Record Date............................................... 6
i
<PAGE>
Page
____
Stated Maturity................................................... 6
Subsidiary........................................................ 6
Trustee........................................................... 7
Trust Indenture Act............................................... 7
U.S. Government Obligations....................................... 7
Section 102. Compliance Certificates and Opinions....................... 7
Section 103. Form of Documents Delivered to Trustee..................... 7
Section 104. Acts of Holders; Record Dates.............................. 8
Section 105. Notices. Etc. to Trustee and to Company.................... 9
Section 106. Notice to Holders; Waiver.................................. 9
Section 107. Conflict with Trust Indenture Act. ........................ 10
Section 108. Effect of Headings and Table of Contents................... 10
Section 109. Successors and Assigns..................................... 10
Section 110. Separability Clause........................................ 10
Section 111. Benefits of Indenture...................................... 10
Section 112. Governing Law.............................................. 10
Section 113. Legal Holidays............................................. 10
ARTICLE TWO
Security Forms
Section 201. Forms of Securities........................................ 11
Section 202. Form of Legend for Book-Entry Securities................... 11
Section 203. Form of Trustee's Certificate of Authentication............ 12
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series....................... 12
Section 302. Denominations.............................................. 15
Section 303. Execution, Authentication, Delivery and Dating............. 15
Section 304. Temporary Securities....................................... 17
Section 305. Registration, Registration of Transfer and Exchange........ 17
Section 306. Mutilated, Destroyed, Lost and Stolen Securities........... 19
Section 307. Payment of Interest; Interest Rights Preserved............. 20
Section 308. Persons Deemed Owners...................................... 21
Section 309. Cancellation............................................... 21
Section 310. Computation of Interest.................................... 22
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.................... 22
Section 402. Application of Trust Money................................. 23
Section 403. Defeasance and Discharge of Securities of Any Series....... 24
ii
<PAGE>
Page
----
ARTICLE FIVE
Remedies
Section 501. Events of Default............................................. 26
Section 502. Acceleration of Maturity; Rescission and Annulment............ 27
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.............................................................. 28
Section 504. Trustee May File Proofs of Claim.............................. 29
Section 505. Trustee May Enforce Claims Without Possession of Securities... 29
Section 506. Application of Money Collected................................ 29
Section 507. Limitation on Suits........................................... 30
Section 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest......................................................... 30
Section 509. Restoration of Rights and Remedies............................ 31
Section 510. Rights and Remedies Cumulative................................ 31
Section 511. Delay or Omission Not Waiver.................................. 31
Section 512. Control by Holders............................................ 31
Section 513. Waiver of Past Defaults....................................... 32
Section 514. Undertaking for Costs......................................... 32
Section 515. Waiver of Stay or Extension of Laws........................... 32
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities........................... 33
Section 602. Notice of Defaults............................................ 33
Section 603. Certain Rights of Trustee..................................... 33
Section 604. Not Responsible for Recitals or Issuance of Securities........ 34
Section 605. May Hold Securities........................................... 34
Section 606. Money Held in Trust........................................... 35
Section 607. Compensation and Reimbursement................................ 35
Section 608. Disqualification; Conflicting Interests....................... 35
Section 609. Corporate Trustee Required; Eligibility....................... 35
Section 610. Resignation and Removal; Appointment of Successor............. 36
Section 611. Acceptance of Appointment by Successor........................ 37
Section 612. Merger, Conversion, Consolidation or Succession to Business... 38
Section 613. Preferential Collection of Claims Against Company............. 39
Section 614. Appointment of Authenticating Agent........................... 39
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of
Holders.............................................................. 40
Section 702. Preservation of Information; Communications to Holders........ 40
Section 703. Reports by Trustee............................................ 41
Section 704. Reports by Company............................................ 41
iii
<PAGE>
Page
----
ARTICLE EIGHT
Supplemental Indentures
Section 801. Supplemental Indentures Without Consent of Holders........... 41
Section 802. Supplemental Indentures With Consent of Holders.............. 42
Section 803. Execution of Supplemental Indentures......................... 43
Section 804. Effect of Supplemental Indentures............................ 44
Section 805. Conformity with Trust Indenture Act.......................... 44
Section 806. Reference in Securities to Supplemental Indentures........... 44
ARTICLE NINE
Covenants
Section 901. Payment of Principal, Premium and Interest................... 44
Section 902. Maintenance of Office or Agency.............................. 44
Section 903. Money for Securities Payments to be Held in Trust............ 45
Section 904. Covenant Defeasance.......................................... 46
Section 905. Statement as to Compliance................................... 48
Section 906. Waiver of Certain Covenants.................................. 48
ARTICLE TEN
Redemption of Securities
Section 1001. Applicability of Article.................................... 48
Section 1002. Election to Redeem; Notice to Trustee....................... 48
Section 1003. Selection of Securities to be Redeemed...................... 49
Section 1004. Notice of Redemption........................................ 49
Section 1005. Deposit of Redemption Price................................. 50
Section 1006. Securities Payable on Redemption Date....................... 50
Section 1007. Securities Redeemed in Part................................. 51
ARTICLE ELEVEN
Sinking Funds
Section 1101. Applicability of Article.................................... 51
Section 1102. Satisfaction of Sinking Fund Payments with Securities....... 51
Section 1103. Redemption of Securities for Sinking Fund................... 52
iv
<PAGE>
INDENTURE, dated as of ____________, 1998, between HEALTH MANAGEMENT
ASSOCIATES, INC., a Delaware corporation (the "Company"), having its principal
office at 5811 Pelican Bay Boulevard, Suite 500, Naples, Florida 34108-2710, and
[ ], as Trustee hereunder (the "Trustee"), having its Corporate Trust
Office at [ ].
RECITALS OF THE COMPANY
The Company deems it advisable to issue from time to time for its lawful
purposes its debentures, notes or other evidences of indebtedness (hereinafter
called the "Securities") in one or more series as in this Indenture provided,
and has duly authorized the execution and delivery of this Indenture to provide
for the issuance from time to time of the Securities, unlimited as to principal
amount, to bear interest at the rates or formulas, to mature at such times and
to have such other provisions as shall be fixed as hereinafter provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Article have, when capitalized, the
meanings assigned to them in this Article, and include the plural as well as
the singular;
(b) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to
them therein;
(c) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles, and except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of this Indenture;
(d) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision, and the words "date of this
Indenture" and "date hereof" and other words of similar import refer to the
effective date of the original execution and delivery of this Indenture,
which is set forth in the first paragraph of this Indenture; and
<PAGE>
(e) all references to dollars, $, U.S. dollars, United States dollars or
cash shall refer to the lawful currency of the United States of America.
"Act," when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" means, with respect to any specified Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any authenticating agent appointed by the
pursuant to Section 614.
"Bankruptcy Law" means Title 11 of the United States Code, as amended, or
any similar United States Federal or state law relating to bankruptcy,
insolvency, receivership, winding-up, liquidation, reorganization or relief of
debtors, or any amendment to, succession to or change in any such law.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors or any committee thereof and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Book-Entry Security" means a Security bearing the legend specified in
Section 202, evidencing all or part of a series of Securities, authenticated and
delivered to the Depositary for such series or its nominee, and registered in
the name of such Depositary or nominee.
"Business Day" when used with respect to any Place of Payment means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in the Place of Payment are authorized or obligated by law
or executive order to close.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or if at any time after the
execution of the Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order signed
in the name of the Company by any one of its Chairman of the Board, its Vice
Chairman, its President
2
<PAGE>
or a Vice President (regardless of Vice Presidential designation), and by any
one of its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee which, at any
particular time, its corporate trust business shall be administered, which
office as of the date of this Indenture is the address of the Trustee set forth
in Section 105.
The term "corporation" means a corporation, association, limited liability
company, joint stock company or business trust.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series issuable or
issued in whole or in part in the form of one or more Book-Entry Securities, the
Person designated as Depositary by the Company pursuant to Section 301, which
must be a clearing agency registered under the Exchange Act, and if at any time
there is more than one such Person, "Depositary" shall mean the Depositary with
respect to the Securities of that series.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and any statute successor thereto.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, and shall
include the terms of particular series of Securities established as contemplated
by Section 301; provided, however, that, if at any time more than one Person is
acting as Trustee under this instrument, "Indenture" shall mean, with respect to
any one or more series of Securities for which such Person is Trustee, this
instrument as originally executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof and shall include the terms of those
particular series of Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
3
<PAGE>
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest" when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, shall mean interest
payable after Maturity.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption or otherwise.
"Officers' Certificate" means a certificate signed by any one of the
Chairman of the Board, the Vice Chairman, the President or a Vice President
(regardless of Vice Presidential designation), and by any one of the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or the Trustee, unless an independent
opinion of counsel is required pursuant to the terms of this Indenture.
"Original Issue Discount Security" means any Security which is issued at a
price lower than the principal amount payable upon the Stated Maturity thereof
and which provides for an amount less than the principal amount thereof to be
due and payable upon redemption thereof or upon a declaration of acceleration of
the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities means, as of the date of
determination, all Securities theretofore authenticated and delivered under this
Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(2) Securities, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided, that if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor reasonably satisfactory to
the Trustee has been made; and Securities, except to the extent provided in
Sections 403 or 904, with respect to which the Company has effected
defeasance as therein provided; and
(3) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been
4
<PAGE>
presented to the Trustee proof reasonably satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such Securities
are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502, (ii) the principal amount of a Security of any
series denominated in one or more foreign currencies, currency units or
composite currencies that shall be deemed Outstanding shall be the U.S. dollar
equivalent, determined on the date of original issuance of such Security in the
manner provided as contemplated by Section 301 with respect to the Securities of
such series, of the principal amount (or, in the case of an Original Issue
Discount Security, the U.S. dollar equivalent on the date of original issuance
of such Security of the amount determined as provided in (i) above) of such
Security, (iii) the principal amount of any Indexed Security of any series that
may be counted in making such determination or calculation and that shall be
deemed outstanding for such purpose shall be equal to the principal face amount
of such Indexed Security at original issuance, unless otherwise established as
contemplated by Section 301 with respect to such Security, and (iv) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall he
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any series,
means the place or places where, subject to the provisions of Section 902, the
principal of and any premium and interest on the Securities of that series are
payable as established as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
5
<PAGE>
"Redemption Date," when used with respect to any Security to be redeemed, in
whole or in part, means the date fixed for such redemption pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date for that purpose established as
contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Department (or any successor department),
including without limitation any vice president (whether or not designated by a
number or a word or words added before or after the title "vice president"), any
trust officer, any assistant secretary, the controller or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers, and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject.
"Security" has the meaning stated in the first recital of this Indenture
and, more particularly, means any Security or Securities authenticated and
delivered under this Indenture; provided, however, that, if at any time there is
more than one Person acting as Trustee under this Indenture, "Securities" with
respect to the Indenture as to which such Person is Trustee shall have the
meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such Person is not
Trustee.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on the
Securities of any series means a date fixed by the Trustee pursuant to Section
307.
"Stated Maturity," when used with respect to any Security or any installment
of principal thereof or interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" means any Person, a majority of the equity ownership or voting
stock of which is at the time owned, directly or indirectly, by the Company or
by one or more other Subsidiaries of the Company, or by the Company and one or
more other Subsidiaries of the Company. For the purposes of this definition,
"voting stock" means capital stock of the class or classes pursuant to which the
holders thereof have the general voting power under ordinary circumstances to
elect at least a majority of the board of directors, managers or trustees of a
corporation (irrespective of whether or not at the time capital stock of any
other class or classes shall have or might have voting power by reason of the
happening of any contingency).
6
<PAGE>
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder; and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this Indenture was executed; provided, however that in the
event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligation or a specific payment of interest
on or principal of any such U.S. Government Obligation held by such custodian
for the account of the holder of a depository receipt; provided that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the specific
payment of interest on or principal of the U.S. Government Obligation evidenced
by such depository receipt.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion
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or representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders of
the Outstanding Securities of all series or one or more series, as the case may
be, may he embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust Indenture
Act, fix any date as the record date for the purpose of determining the Holders
of Securities of any series entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to vote on
any action, authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Company prior to the first
solicitation of a Holder of Securities of such series made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 701) prior to such first solicitation or vote, as the case
may be. With regard to any record date for action to be taken by the Holders of
one or more series of Securities, only the Holders of Securities of such series
on such date (or their duly designated proxies) shall be entitled to give or
take, or vote on, the relevant action.
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(d) The principal amount and serial numbers of Securities held by any
Person, and the date of holding the same, shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of any
thing done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
(f) Without limiting the generality of the foregoing, a Holder entitled
hereunder to give or take any action hereunder with regard to any particular
Security may do so with regard to all or any part of the principal amount of
such Security or by one or more duly appointed agents, each of which may do so
pursuant to such appointment with regard to all or any different part of such
principal amount.
SECTION 105. NOTICES. ETC. TO TRUSTEE AND TO COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office at the address specified in
the first paragraph of this Indenture, Attention: Corporate Trust
Department, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to
it at the address of its principal office specified in the first paragraph
of this Indenture, Attention: Office of the Chief Financial Officer, with a
copy to the same such address, Attention: Office of the General Counsel, or
at any other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the
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Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualities or conflicts with a provision of
the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the Trust Indenture Act provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or excluded, as the case may
be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall bind
successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities, express or implied, shall give
to any Person, other than the parties hereto and their successors hereunder and
the Holders, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of laws.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment for
such Security, then notwithstanding any other provision of this Indenture or of
the Security (other than a provision
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in the Securities of any series which specifically states that such provision
shall apply in lieu of this Section), payment of interest or principal (and
premium, if any) need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, and no interest shall accrue on such payment
for the period from and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS OF SECURITIES.
The Securities of each series shall be in substantially the forms (including
without limitation temporary or permanent global form) as shall be established
by or pursuant to one or more Board Resolutions (as set forth in a Board
Resolution or, to the extent established pursuant to rather than as set forth in
a Board Resolution, an Officers' Certificate detailing such establishment) or in
one or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture or any indenture supplemental hereto, and may have
such letters, numbers or other marks of identification or designation and such
legends or endorsements placed thereon as the Company may deem appropriate and
as are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any securities exchange on which the
Securities may be listed, or to conform to general usage, all as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or may be
produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
SECTION 202. FORM OF LEGEND FOR BOOK-ENTRY SECURITIES.
Any Book-Entry Security authenticated and delivered hereunder shall bear a
legend in substantially the following form:
"This Security is a Book-Entry Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary or a successor depository. This Security is not
exchangeable for Securities registered in the name of a Person other than
the Depositary or its nominee except in the limited circumstances described
in the Indenture, and no transfer of this Security (other than a transfer of
this Security as a whole by the Depositary to a nominee of the Depositary or
by a nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in the limited circumstances described
in the Indenture."
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SECTION 203. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in substantially the
following form:
"This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
__________________________________________________
as Trustee
By: _________________________________________
Authorized Officer."
If an appointment of an Authenticating Agent with respect to one or more
series is made pursuant to Section 614, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
"This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
__________________________________________________
as Trustee
By: ___________________________________________
as Authenticating Agent
By: ___________________________________________
Authorized Officer."
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series, and each such series
shall rank equally and pari passu with each other series. With respect to any
series of Securities which may be designated and authenticated and delivered
under this Indenture, there shall be established in or pursuant to one or more
Board Resolutions (and to the extent established pursuant to rather than as set
forth in a Board Resolution, in an Officers' Certificate detailing such
establishment) or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series (except as provided in the
last paragraph of this Section 301), the following:
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(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) the aggregate principal amount of the Securities and any limit upon
the aggregate principal amount of the Securities of the series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the series pursuant to Section 304,
305, 306, 806 or 1007 and except for any Securities which, pursuant to
Section 303, are deemed never to have been authenticated and delivered
hereunder), which limit, unless otherwise expressly established, may be
changed from time to time by or pursuant to Board Resolution, Officers'
Certificate or indentures supplemental hereto without the consent of any
Holders;
(3) the Person to whom any interest on a Security of the series shall be
payable, if other than the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates, or the method by which such date or dates will be
determined, on which the principal of the Securities of the series is
payable;
(5) the rate or rates (which may be fixed or variable) at which the
Securities of the series shall bear interest, if any, or the method or
methods by which such rate or rates shall be determined, the date or dates
from which such interest shall accrue or the method by which such date or
dates shall be determined, the Interest Payment Dates on which any such
interest shall be payable and the Regular Record Date, if any, for any
interest payable on any Interest Payment Date, or the method by which such
date shall be determined, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve 30-day months;
(6) the place or places where the principal of and any premium and
interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which,
the currency or currencies, currency unit or composite currency in which,
and the other terms and conditions upon which Securities of the series may
be redeemed, in whole or in part, at the option of the Company;
(8) the right or obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any optional redemption,
sinking fund or analogous provisions or at the option of a Holder thereof
and the period or periods within which, the price or prices at which, the
currency or currencies, currency unit or composite currency in which, and
the other terms and conditions upon which Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such right
or obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
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(10) the application, if any, of Section 403 to the Securities of the
series and any additional conditions thereto and any additional means of
discharge pursuant thereto;
(11) the application, if any, of Section 904 to the Securities of the
series and any additional conditions thereto and any additional means of
discharge pursuant thereto;
(12) the currency or currencies, currency unit or composite currency in
which payment of the principal of and any premium and interest on any
Securities of the series shall be payable or denominated if other than the
currency of the United States of America and the manner of determining the
U.S. dollar equivalent thereof for purposes of the definition of
"Outstanding" in Section 101;
(13) if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined with reference to
an index, formula or other method (which index, formula or method may be
based, without limitation, on one or more currencies, currency units,
composite currencies, commodities, equity indices or other indices), the
manner in which such amounts shall be determined;
(14) whether Securities of the series are to be issuable as registered
securities, bearer securities or both, whether any Securities of the series
are to be issuable initially in temporary global form and whether any
Securities of the series are to be issuable in permanent global form with or
without coupons;
(15) whether the Securities of the series shall be issued in whole or
in part in the form of one or more Book-Entry Securities and, in such case,
the Depositary with respect to such Book-Entry Security or Securities and
the circumstances under which any such Book-Entry Security may be registered
for transfer or exchanged, or authenticated and delivered, in the name of a
Person other than such Depositary or its nominee, if other than as set forth
in Section 305;
(16) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or a Holder
thereof, in a currency or currencies, currency unit or units or composite
currency or currencies other than that in which such Securities are
denominated or stated to be payable, the period or periods within which, and
the terms and conditions upon which, such election may be made, and the time
and manner of, and identity of the exchange rate agent with responsibility
for, determining the exchange rate between the currency or currencies,
currency unit or units or composite currency or currencies in which such
Securities are denominated or stated to be payable and the currency or
currencies, currency unit or units or composite currency or currencies in
which such Securities are to be so payable;
(17) if other than the entire principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
(18) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
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(19) any deletions from, modifications of or additions to the Events of
Default or covenants of the Company with respect to Securities of the
series, whether or not such Events of Default or covenants are consistent
with the Events of Default or covenants set forth herein;
(20) the obligation, if any, of the Company to list the Securities on a
securities exchange; and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 801(5)).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided by or pursuant to the
Board Resolution or Officers' Certificate referred to above or as set forth in
any indenture supplemental hereto. The Securities of any series need not be
issued at the same time but may be issued from time to time and the terms of any
Security may be established prior to the issuance thereof but after the issuance
of other Securities of the same series.
SECTION 302. DENOMINATIONS.
The Securities of each series shall be issuable in registered form without
coupons in such denominations as shall be established as contemplated by Section
301. In the absence of any such provisions with respect to the Securities of
any series, the Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its Chairman of
the Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal which may, but need not, be attested by its
Treasurer, one of its Assistant Treasurers, its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities to or upon
the order of the Company or pursuant to such procedures acceptable to the
Trustee and to such recipients as the case may be as specified from time to time
by a Company Order. If all the Securities of any series are not to be issued at
one time and if the terms of such Securities established as contemplated by
Section 301 so permit, such Company
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Order may set forth procedures acceptable to the Trustee for the completion and
authentication of such Securities from time to time.
In authenticating Securities of any series, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon,
(1) any Board Resolution, Officers' Certificate and/or indenture
supplemental hereto by or pursuant to which the forms and terms of such
Securities are established as contemplated by Sections 201 and 301;
(2) an Officers' Certificate setting forth the forms and terms of such
Securities and stating that the forms and terms of such Securities have been
established pursuant to Sections 201 and 301 and comply with this Indenture,
and covering such other matters as the Trustee may reasonably request; and
(3) an Opinion of Counsel substantially to the effect that:
(A) the forms and the terms of such Securities have been duly
authorized and established in conformity with the provisions of this
Indenture,
(B) all conditions precedent provided for in this Indenture relating
to the Trustee's authentication of such Securities have been complied
with, and
(C) such Securities, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles and to such other matters as such counsel may specify.
The Trustee shall not be required to authenticate such Securities the forms or
terms of which have been established by or pursuant to a Board Resolution if the
issue of such Securities pursuant to this Indenture will affect the Trustee's
own rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Company Order, Board Resolution,
indentures supplemental hereto, Officers' Certificate and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents (with such
modifications as may be appropriate) are delivered at or prior to the
authentication upon original issuance of the first Security of such series to be
issued and reasonably contemplate such authentication of each such Security.
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Each Security shall be dated the date of its authentication, unless
otherwise established therefor as contemplated by Section 301.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities of such Series which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities. In the case of Securities of
any series, such temporary Securities may be in global form.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute, and the Trustee
shall authenticate and deliver in exchange therefor, one or more definitive
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and the registration of transfers of Securities. The
Trustee is
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hereby appointed "Security Registrar" for the purpose of registering Securities
and registering the transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any series at
the office or agency in a Place of Payment for Securities of that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of a
like aggregate principal amount and tenor, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange or redemption shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange
of Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 806 or 1007 not involving any transfer.
Neither the Company nor the Trustee shall be required (i) to issue, register
the transfer of or exchange Securities of any series, if such Security may be
among those selected for redemption, during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1003 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding the foregoing, and except as may be established as
contemplated by Section 301 for Securities of such series, no Book-Entry
Security shall be registered for transfer or exchanged, or authenticated and
delivered, whether pursuant to this Section, Sections 304, 306, 806 or 1007 or
otherwise, in the name of a Person other than the Depositary for such Book-Entry
Security or its nominee until (i) the Depositary with respect to a Book-Entry
Security notifies the Company that it is unwilling or unable to continue as
Depositary for such Book-
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Entry Security or the Depositary ceases to be a clearing agency registered under
the Exchange Act, (ii) the Company executes and delivers to the Trustee a
Company Order that such Book-Entry Security shall be so exchangeable or the
transfer thereof so registerable, or (iii) there shall have occurred and be
continuing an Event of Default with respect to the Securities of such series.
Upon the occurrence in respect of any Book-Entry Security of any series of any
one or more of the conditions specified in clauses (i), (ii) or (iii) of the
preceding sentence or such other conditions as may be established as
contemplated by Section 301 for Securities of such series, such Book-Entry
Security may be registered for transfer or exchanged for Securities registered
in the names of, or authenticated and delivered to, such Persons (including
Persons other than the Depository with respect to such series and its nominees)
as the Depositary with respect to such series shall direct.
Except as provided in the preceding paragraph, any Security authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu
of, any Book-Entry Security, whether pursuant to this Section, Section 304, 306,
806 or 1007 or otherwise, shall also be a Book-Entry Security and bear the
legend specified in Section 202.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
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The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Except as otherwise established as contemplated by Section 301 with respect
to Securities of any series, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest at the office or agency of the Company maintained for such
purpose pursuant to Section 902; provided, however, that each installment of
interest on any Security may at the Company's option be paid by mailing a check
for such interest, payable to or upon the written order of the Person entitled
thereto pursuant to Section 308, to the address of such Person as it appears on
the Security Register.
Except as otherwise established as contemplated by Section 301 with respect
to Securities of any series, any interest on any Security which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in paragraph (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such
series and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money in the currency or
currencies, currency unit or units or composite currency or currencies in
which the Securities are payable (except as otherwise established as
contemplated by Section 301 in respect of such Securities) equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted
Interest as provided in this paragraph. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of such Securities at his address as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their
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respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following paragraph (2).
(2) The Company may pay any Defaulted Interest on the Securities of any
series in any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may then be listed, and
upon such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this
paragraph, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security delivered
under this Indenture upon registration of transfer of or in exchange for or in
lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and any premium and
(subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Book-Entry Security,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by a Depository or impair, as between a Depository
and holders of beneficial interests in any Book-Entry Security, the operation of
customary practices governing the exercise of the rights of the Depository (or
its nominee) as Holder of such Book-Entry Security.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, repayment at the option
of the Holder, registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All canceled Securities held by the Trustee shall be disposed of in
accordance with its customary practice.
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SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise established as contemplated by Section 301 in respect of
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further effect with
respect to Securities of any series specified in such Company Request (except as
to any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and the Trustee, upon receipt of such Company
Request, and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such series,
when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered (other than (i) Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306 and (ii) Securities of such series for whose
payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 903) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of clause (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in trust
for the purpose (x) an amount in the currency or currencies, currency unit
or units or composite currency or currencies in which the Securities are
payable, or (y) with respect to Securities of any series denominated only in
United States dollars, U.S. Government Obligations which through
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the payment of interest and principal in respect thereof in accordance with
their terms will provide not later than the opening of business of the due
date of any payment referred to in clause (i), (ii) or (iii) above money in
an amount, or (z) a combination thereof with respect to Securities of any
series denominated only in United States dollars, sufficient (without
consideration of any reinvestment of such principal and interest) to pay and
discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal (and premium, if
any) and any interest to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be, together with any mandatory sinking fund payments
or analogous payments applicable to Securities of such series on the day on
which such payments are due and payable in accordance with the terms of this
Indenture and of such Securities;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company in respect of such Securities; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
with respect to such Securities have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to Securities of any series pursuant to this Section, the obligations of
the Company to the Trustee under Section 607, the obligations of the Trustee to
any Authenticating Agent under Section 614 and, if money shall have been
deposited with the Trustee pursuant to paragraph (1)(B) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
903, in each case with respect to such Securities, shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
(a) Subject to the provisions of the last paragraph of Section 903, all
money and U.S. Government Obligations deposited with the Trustee pursuant to
Sections 401, 403 or 904, and all money received by the Trustee in respect of
such U.S. Government Obligations so deposited, shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with or
received by the Trustee or to make mandatory sinking fund payments or analogous
payments as contemplated by Section 403 or 904.
(b) The Company shall pay and shall indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against U.S. Government Obligations
deposited pursuant to Section 401, 403 or 904 or the interest and principal
received in respect of such obligations other than any payable by or on behalf
of Holders.
(c) The Trustee shall deliver or pay to the Company from time to time upon
Company Request any money or U.S. Government Obligations held by it as provided
in Section 401, 403
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or 904 which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, are then in excess of the amount thereof which then would have been
required to be deposited for the purpose for which such money or U.S. Government
Obligations were deposited or received.
SECTION 403. DEFEASANCE AND DISCHARGE OF SECURITIES OF ANY SERIES.
If this Section 403 is established, as contemplated by Section 301, to be
applicable to Securities of any series, then notwithstanding Section 401, (a)
the Company shall be deemed to have paid and discharged the entire indebtedness
on all the Outstanding Securities of that series, (b) the provisions of this
Indenture as it relates to such Outstanding Securities (except as to the rights
of Holders of Securities to receive, from the trust funds described in paragraph
(1) below, (i) payment of the principal of (and premium, if any) and any
installment of principal of (and premium, if any) or interest on each Stated
Maturity of such principal or installment of principal or interest or any
mandatory sinking fund payments or analogous payments applicable to the
Securities of that series on the day on which such payments are due and payable
in accordance with the terms of the Indenture and of such Securities, (ii) the
Company's obligations with respect to such Securities under Sections 305, 306,
902 and 903, (iii) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (iv) the applicability of Article Four and Section 904 of
this Indenture) shall no longer be in effect, and (c) the Trustee, at the
expense of the Company, shall upon Company Request, execute proper instruments
acknowledging the same, provided that the following conditions shall have been
satisfied:
(1) the Company shall have deposited or caused to be deposited with the
Trustee (or another trustee satisfying the requirements of Section 609),
irrevocably (subject to the provisions of Section 402(c), the last paragraph
of this Section 403, and the last paragraph of Section 903), as trust funds
in trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Securities of that series, with reference to
this Section 403, (A) an amount in the currency or currencies, currency unit
or units or composite currency or currencies in which such Securities are
payable, or (B) with respect to Securities of any series denominated only in
United States dollars, U.S. Government Obligations which through the payment
of interest and principal in respect thereof in accordance with their terms
will provide not later than the opening of business on the due date of any
payment referred to in this Section money in an amount, or (C) a combination
thereof with respect to Securities of any series denominated only in United
States dollars, sufficient, without consideration of any reinvestment of
such principal and interest, in the opinion of a nationally recognized firm
of independent public accountants or a nationally recognized investment
banking firm expressed in a written certification thereof delivered to the
Trustee, to pay and discharge the principal of (and premium, if any) and
each installment of principal (and premium, if any) and interest on such
Outstanding Securities of that series on each applicable Stated Maturity of
such principal or installment of principal or interest (or on any date after
such date to be specified in a supplemental indenture relating to the
Securities of such series, such date being referred to as the "Defeasance
Redemption Date");
(2) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating (and such statement
shall be true) that such defeasance
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shall not result in a breach or violation of, or constitute a Default under,
this Indenture or any other material agreement or instrument to which the
Company is a party or by which it is bound;
(3) no Default or Event of Default with respect to the Securities of
that series shall have occurred and be continuing on the date of such
deposit and insofar as Sections 501(5) or 501(6) are concerned, at any time
during the period ending on the 91st day after the date of such deposit;
(4) the Company has delivered to the Trustee an Opinion of Counsel of
independent counsel in the United States stating that (A) the Company has
received from, or there has been published by, the Internal Revenue Service
a ruling or (B) since the date of this Indenture, there has been a change in
the applicable United States federal income tax law, in either case to the
effect that, and based thereon such opinion shall confirm that Holders of
the Outstanding Securities of that series will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit, defeasance
and discharge and will be subject to United States federal income tax on the
same amount and in the same manner and at the same times, as would have been
the case if such deposit, defeasance and discharge had not occurred;
(5) such defeasance shall not cause the Trustee for the Securities to
have a conflicting interest with respect to any securities of the Company;
(6) such defeasance shall not result in the trust arising from such
deposit constituting an investment company within the meaning of the
Investment Company Act of 1940, as amended, unless such trust shall be
registered under the Securities Act or exempt from registration thereunder;
and
(7) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating (and such statement
shall be true), that all conditions precedent provided for relating to the
defeasance and discharge of the entire indebtedness on all Outstanding
Securities of any such series as contemplated by this Section have been
complied with.
Notwithstanding any other provisions of this Section, such defeasance shall
be effected in compliance with any additional or substitute terms, conditions or
limitations which may be established as contemplated by Section 301 in respect
of the Securities of that series. Opinions required to be delivered under this
Section may have qualifications customary for opinions of the type required.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Section 403 by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the
Securities of such series shall be revived and reinstated as though no deposit
had occurred pursuant to this Section 403 until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with this
Section 403; provided, however, that if the Company makes any payment of
principal of or any premium or interest on
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any Security following the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of the Securities of such series to
receive such payment from the money held by the Trustee or the Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless it is either inapplicable to a particular series of Securities or it is
specifically deleted or modified in or pursuant to the terms of such series or
in the form of Security of such series:
(1) default in the payment of the principal of (or premium, if any, on)
any Security of that series at its Maturity (upon acceleration, redemption,
required repurchase or otherwise, as the case may be); or
(2) default in the payment of any installment of interest upon any
Security of that series when it becomes due and payable, and continuance of
such default for a period of 30 days; or
(3) default in the deposit of any sinking fund payment, when and as due
by the terms of a Security of that series; or
(4) default in the performance or breach of any covenant or warranty of
the Company in this Indenture (other than any such default or breach which
is elsewhere in this Section specifically dealt with or which is expressly
included in this Indenture or any supplemental indenture solely for the
benefit of a series of Securities other than that series), and continuance
of such default or breach for a period of 60 days after there has been
given, by registered or certified mail, (A) to the Company by the Trustee or
(B) to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities of that series, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Bankruptcy Law or (B) a decree or order
adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable federal or
state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company, or of any
substantial part of its properties, or
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ordering the winding up or liquidation of its affairs, and the continuance
of any such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 90 consecutive days; or
(6) (A) the commencement by the Company of a voluntary case or
proceeding under any applicable Bankruptcy Law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, (B) the consent by it
to the entry of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Bankruptcy Law or to the
commencement of any bankruptcy or insolvency case or proceeding against it,
(C) the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, (D) the
consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, (E) the making by it of an assignment for the benefit
of creditors, (F) the admission by it in writing of its inability to pay its
debts generally as they become due, or (G) the taking of corporate action by
the Company in furtherance of any such action; or
(7) any other Event of Default established as contemplated by Section
301 with respect to Securities of that series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the unpaid principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount of such Securities as may be
specified in the terms thereof) of, premium, if any, and accrued interest on all
of the Securities of that series to be immediately due and payable by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount, premium, if any, and interest shall
become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient
to pay in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise established as contemplated by Section 301 in respect
of Securities of that series)
(A) all overdue interest on all Securities of that series,
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(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate or rates prescribed therefor in such
Securities, and
(D) all amounts owing the Trustee pursuant to Section 607 in respect
of Securities of that series; and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of principal of, and premium, if any, and
interest on Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such other
amount as shall he sufficient to cover the amounts due the Trustee pursuant to
Section 607 in respect of such Securities.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement
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of any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Company (or any other obligor upon
the Securities), its property or its creditors, the Trustee shall be entitled
and empowered, by intervention in such proceeding or otherwise, to take any and
all actions authorized under the Trust Indenture Act in order to have the claims
of the Trustee pursuant to Section 607 and of the Holders allowed in any such
judicial proceeding. In particular, the Trustee shall be authorized to collect
and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same, and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it
pursuant to Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of Holders, vote for the election of a trustee
in bankruptcy or similar official and be a member of a creditors' or other
similar committee.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee against third parties or otherwise
without the possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the amounts due
the Trustee pursuant to Section 607, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money on account of principal or any premium or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal of
and any premium and interest payable on the Securities in respect of which or
for the benefit of which
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such money has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for principal
and any premium and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto,
including the Company, provided that all sums due and owing the Holders and the
Trustee have been paid in full as required by the Indenture.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307) any
interest on such Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
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SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series, provided that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) the Trustee shall not be obligated to take any action unduly
prejudicial to Holders not joining in such direction or involving the
Trustee in personal liability.
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SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any existing or past default hereunder with
respect to the Securities of such series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on any
Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Eight cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security of any
series by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee in respect of the Securities of such
series, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merit, and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Company or by the Trustee,
to any suit instituted by any Holder or group of Holders holding in the
aggregate more than 10% in principal amount of the Outstanding Securities of
such series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of, premium, if any, or interest on any Security on or
after the respective Stated Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date).
SECTION 515. WAIVER OF STAY OR EXTENSION OF LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act and this Indenture. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 602. NOTICE OF DEFAULTS.
If a default occurs hereunder with respect to Securities of any series, the
Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series, the Trustee shall be protected
in withholding such notice if and so long as the board of directors, the
executive committee or a committee of Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interests of
the Holders of the Securities of such series. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to the Securities of such
series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors shall be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate;
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(4) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities or any prospectus prepared
in connection with the offering of the Securities, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder and that the
statements made by it in a Statement of Eligibility and Qualification on Form T-
1 supplied to the Company are true and accurate subject to the qualifications
set forth therein. The Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
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SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by it in accordance
with any provision of this Indenture (including the reasonable compensation
and the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee and each predecessor Trustee for, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder, including
the costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder; provided that the Trustee and each predecessor Trustee shall
promptly notify the Company of the commencement of any action, or proceeding
for which it intends to seek indemnity hereunder, will permit the Company to
conduct the defense thereof on such Trustee's or predecessor Trustee's
behalf, and will not compromise or settle any such action, suit or
proceeding without the prior approval of the Company.
The Company's payment obligations pursuant to this Section 607 shall survive
the discharge of this Indenture. When the Trustee incurs expenses after the
occurrence of an Event of Default specified in Sections 501(5) or 501(6), the
expenses are intended to constitute expenses of administration under the
Bankruptcy Law.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a corporation
organized and doing business under the laws of the United States of America, any
State thereof or the District
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of Columbia, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by federal or state authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article. No obligor upon any Security issued under this Indenture or a Person
directly or indirectly controlling, controlled by or under common control with
such obligor shall serve as Trustee under this Indenture.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of one
or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(d) If at any time
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder of a Security who has been
a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a Security for at
least six months, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall
be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to Board Resolution may
remove the Trustee with respect to all Securities or the Securities of any
series, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security of any series for at least six
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months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect to
all Securities of such series and the appointment of a successor Trustee or
Trustees with respect thereto.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by or pursuant to a
Company Request or Company Order, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
be only one Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 611. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders of Securities of such series and
accepted appointment in the manner required by Section 611, any Holder who has
been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series. Such court may thereupon, after such
notice, if any, as it may deem proper, appoint a successor Trustee.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 106. Each notice
of such appointment shall include the name of the successor Trustee with respect
to the Securities of such series and the address of its Corporate Trust Office.
Notices of resignation, removal and appointment may be combined into a single
notice.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with respect
to all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee, with like effect as if
originally named Trustee hereunder; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly
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assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with respect
to the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraphs (a) and (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may
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adopt such authentication and deliver the Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such
Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company (or any
other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may, by an instrument in writing, appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which may be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue and upon exchange, registration of transfer or
partial redemption thereof or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by federal or state authority. If such Authenticating Agent publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or such Authenticating Agent.
An Authenticating Agent may, and if it shall cease to be eligible shall,
resign at any time by giving written notice thereof to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be
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acceptable to the Company and shall mail written notice of such appointment by
first-class mail, postage prepaid, to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve, as their names and
addresses appear in the Security Register. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payment, subject to the provisions
of Section 607.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
With respect to each series of Securities, the Company will furnish or cause
to be furnished to the Trustee
(a) semi-annually, not later than 15 days after each Regular Record Date
for Securities of each series at the time Outstanding, a list, in such form
as the Trustee may reasonably require, of the names and addresses of the
Holders of Securities of such series as of such Regular Record Date (or a
date to be established as contemplated by Section 301 for Original Issue
Discount Securities), and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such
list is furnished,
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
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(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act, regardless of the source from which such information
was derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under the Trust Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
(a) On or before February 1 in each year following the date hereof, the
Trustee shall transmit to the Holders such reports concerning the Trustee and
its actions under this Indenture as may be required pursuant to Trust Indenture
Act in the manner and at the times provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission to
the Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
SECTION 704. REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 801. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution (which Board Resolution may provide general terms or parameters for
such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to a Company Order), and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein, in
any supplemental indenture and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of the Securities of all or any series (and if such covenants are to
be for the benefit of the
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Securities of less than all series, stating that such covenants are
expressly being included solely for the benefit of the Securities of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (A) shall neither (i) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii) modify the
rights of the Holder of any such Security with respect to such provision, or
(B) shall become effective only when there is no such Security Outstanding;
or
(6) to establish the forms or terms of Securities of any series as
contemplated by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more series
and to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee; or
(8) to supplement any of the provisions of this Indenture to such extent
as shall be necessary to permit or facilitate the defeasance and discharge
of the Securities of any series pursuant to this Indenture; provided that
any such action shall not adversely affect the interests of the Holders of
Securities of such series or any other series of Securities in any material
respect; or
(9) to comply with the requirements of the Commission in order to
effect or maintain the qualification of the Indenture under the Trust
Indenture Act; or
(10) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture which may be inconsistent with any
other provision herein or in any supplemental indenture, or to make any
other provisions with respect to matters or questions arising under this
Indenture; provided that any such action shall not adversely affect the
interests of the Holders of Securities of any series in any material
respect.
SECTION 802. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by Board Resolution (which Board
Resolution may provide general terms or parameters for such action
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and may provide that the specific terms of such action may be determined in
accordance with or pursuant to a Company Order), and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or change any
Place of Payment where, or the currency or currencies, currency unit or
units or composite currency or currencies in which, any Security or any
premium or interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for
any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or Section
906, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby, or
(4) make such other changes as may require such consent pursuant to any
supplemental indenture.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of the Securities of one or more particular series, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 803. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the
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Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 804. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 805. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall conform
to the requirements of the Trust Indenture Act, as in effect at the time of
execution thereof.
SECTION 806. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series and of like tenor.
ARTICLE NINE
COVENANTS
SECTION 901. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of the Securities of each
series that it will duly and punctually pay the principal of and any premium and
interest on the Securities of that series in accordance with the terms of the
Securities of that series and this Indenture.
SECTION 902. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for the Securities of any
series an office or agency where Securities of that series may be presented or
surrendered for payment, where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served, which shall be in the City of New York unless otherwise provided
pursuant to Section 301 of this Indenture. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency.
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If at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in accordance with the requirements set forth above for Securities of any series
for such purposes. The Company will give prompt written notice to the Trustee
of any such designation or rescission and of any change in the location of any
such other office or agency.
SECTION 903. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with respect to
the Securities of any series, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum in the currency or currencies, currency unit or units or composite currency
or currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series)
sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for the Securities
of any series, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum (in the currency or currencies, currency unit or units or composite
currency or currencies described in the preceding paragraph) in same day funds
sufficient to pay such amount, such sum to be held as provided by the Trust
Indenture Act, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for the Securities of any series
(other than the Company or the Trustee) to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will (i) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and
(ii) during the continuance of any default by the Company (or any other obligor
upon the Securities of that series) in the making of any payment in respect of
the Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent
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to pay, to the Trustee all sums held in trust by the Company or such Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request (unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law), or (if
then held by the Company) shall be discharged from such trust; and the Holder of
such Security shall (unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law) thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 904. COVENANT DEFEASANCE.
To the extent that this Section 904 is established as contemplated by
Section 301 to be applicable to Securities of any series or any covenant
applicable thereto, (a) the Company may omit to comply with any term, provision
or condition of one or more covenants established as contemplated by Section 301
and to which this Section 904 is so established as applicable, and (b) such
omission shall be deemed not to be an Event of Default pursuant to Sections
501(3) or 501(4), in each case with respect to the Securities of that series,
provided that the following conditions have been satisfied:
(1) the Company shall have deposited or caused to be deposited with the
Trustee (or another trustee satisfying the requirements of Section 609)
irrevocably (subject to the provisions of Section 402(c), the last paragraph
of Section 903 and the last paragraph of this Section 904), as trust funds
in trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Securities of that series, with reference to
this Section 904, (A) an amount in such currency or currencies, currency
unit or unit or composite currency or currencies in which such Securities
are then payable, or (B) with respect to Securities of any series
denominated only in United States dollars, U.S. Government Obligations which
through the payment of interest and principal in respect thereof in
accordance with their terms will provide not later than the opening of
business on the due date of any payment referred to in this Section money in
an amount, or (C) a combination thereof with respect to Securities of any
series denominated only in United States dollars, sufficient, without
consideration of any reinvestment of such principal and interest, in the
opinion of a nationally recognized firm of independent certified public
accountants or a nationally recognized investment banking firm expressed in
a written
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certification thereof delivered to the Trustee, to pay and discharge the
principal (and premium, if any) and each installment of principal (and
premium, if any) and interest on such Outstanding Securities on the Stated
Maturity of such principal or installment of principal or interest (or on
any date after such date to be specified in a supplemental indenture
relating to the Securities of such series, such date being referred to as
the "Defeasance Redemption Date");
(2) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating (and such statement
shall be true) that such covenant defeasance shall not result in a breach or
violation of, or constitute a Default under, this Indenture or any other
material agreement or instrument to which the Company is a party or by which
it is bound;
(3) no Default or Event of Default with respect to the Securities of
that series shall have occurred and be continuing on the date of such
deposit and insofar as Sections 501(5) or 501(6) are concerned, at any time
during the period ending on the 91st day after the date of deposit;
(4) the Company has delivered to the Trustee an Opinion of Counsel of
independent counsel in the United States to the effect that Holders of the
Outstanding Securities of such series will not recognize income, gain or
loss for United States federal income tax purposes as a result of such
deposit and covenant defeasance and will be subject to United States federal
income tax on the same amount and in the same manner and at the same times,
as would have been the case if such deposit and covenant defeasance had not
occurred;
(5) such covenant defeasance shall not cause the Trustee for the
Securities to have a conflicting interest with respect to any securities of
the Company;
(6) such covenant defeasance shall not result in the trust arising from
such deposit constituting an investment company within the meaning of the
Investment Company Act of 1940, as amended, unless such trust shall be
registered under the Securities Act or exempt from registration thereunder;
and
(7) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating (and such statement
shall be true) that all conditions precedent provided for relating to the
covenant defeasance as contemplated by this Section have been complied with.
Notwithstanding any other provisions of this Section, such defeasance shall
be effected in compliance with any additional or substitute terms, conditions or
limitations which may be established as contemplated by Section 301 in respect
of the Securities of that series. Opinions required to be delivered under this
Section may have qualifications customary for opinions of the type required.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Section 904 by reason of any order or judgment of any court
or governmental authority
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enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Section 904 until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with this Section 904; provided, however,
that if the Company makes any payment of principal of or any premium or interest
on any Security following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of the Securities of such
series to receive such payment from the money held by the Trustee or the Paying
Agent.
SECTION 905. STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, a certification
from the principal executive officer, principal financial officer or principal
accounting officer of the Company as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture (determined
without regard to any period of grace or requirement of notice provided
hereunder).
SECTION 906. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any term,
provision or condition of the covenants established as contemplated by Section
301 with respect to the Securities of any series, except to the extent the terms
of such Securities established as contemplated by Section 301 make this Section
906 inapplicable to any such term, provision or condition of any such covenant,
if before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities of such series shall, by Act of
such Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
ARTICLE TEN
REDEMPTION OF SECURITIES
SECTION 1001. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms established as contemplated
by Section 301 and (except as otherwise expressly established as contemplated by
Section 301 in respect of Securities of such series) in accordance with this
Article.
SECTION 1002. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced by a
Board Resolution or by action taken pursuant to a Board Resolution. In case of
any redemption at the
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election of the Company of less than all the Securities of any series, the
Company shall, at least 45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date, of the principal amount of Securities of
such series to be redeemed and, if applicable, of the tenor of the Securities of
such series to be redeemed. In the case of any redemption of Securities (i)
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, or (ii) pursuant to an
election of the Company which is subject to a condition specified in the terms
of such Securities, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction or condition.
SECTION 1003. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed (unless all
of the Securities of such series and of a specified tenor are to be redeemed),
the particular Securities to be redeemed shall be selected not more than 45 days
prior to the Redemption Date by the Company or the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Company or the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any integral multiple
thereof) of the principal amount of Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series.
If less than all of the Securities of such series and of a specified tenor are
to be redeemed, the particular Securities to be redeemed shall be selected not
more than 45 days prior to the Redemption Date by the Company or the Trustee,
from the Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence.
The Company or the Trustee, as the case may be, shall promptly notify the
other in writing of the Securities selected for redemption and, in the case of
any Securities selected for partial redemption, the principal amount thereof to
be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1004. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
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(3) if less than all the Outstanding Securities of any series are to be
redeemed, the identification of the particular Securities to be redeemed,
(4) in the case of a Security to be redeemed in part, the principal
amount of such Security to be redeemed and that after the Redemption Date,
upon surrender of such Security, new Security or Securities of such series
in the aggregate principal amount equal to the unredeemed portion thereof
will be issued,
(5) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(6) the place or places where such Securities are to be surrendered for
payment of the Redemption Price,
(7) that the redemption is for a sinking fund, if such is the case, and
(8) the CUSIP number, if any, relating to the Securities.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1005. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 903) an amount of
money in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series) sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on that date.
SECTION 1006. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series), and from and after such date (unless the Company
shall default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by
the Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
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Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1007. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE ELEVEN
SINKING FUNDS
SECTION 1101. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
find payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking find payment may be subject to reduction as provided
in Section 1102. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of Securities of such
series.
SECTION 1102. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of such series required to be made pursuant to the terms of
such Securities as provided for by the terms of such series; that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the
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Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
SECTION 1103. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment date for any series
of Securities, the Company will deliver to the Trustee a Company Order
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series), and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1102 and will also deliver to the Trustee any Securities to be so
credited. Not less than 30 days before each such sinking fund payment date the
Company or the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 1003 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1004. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1006 and 1007.
__________
This instrument may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
HEALTH MANAGEMENT ASSOCIATES, INC.
[corporate seal] By: _______________________________________
Name:
Title:
Attest:
By: __________________________
Name:
Title:
[ ], TRUSTEE
[corporate seal] By: _______________________________________
Name:
Title:
Attest:
By: ___________________________
Name:
Title:
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State of )
County of ) ss.:
On the___day of___, 1998, before me personally came ________________________
to me known, who, being by me duty sworn, did depose and say that he is the_____
of HEALTH MANAGEMENT ASSOCIATES, Inc., one of the corporations described in and
which executed the foregoing instrument, that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
_______________________________________
Notary Public
Notary Public
State of ____
my Commission expires on
____________________
State of )
County of ) ss.:
On the___day of___, 1998, before me personally came_________________________
to me known, who, being by me duty sworn, did depose and say that he is the_____
of [ ], one of the corporations described in and which executed the
foregoing instrument, that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he signed his
name thereto by like authority.
_______________________________________
Notary Public
Notary Public
State of ____
My Commission expires on
___________________
54
<PAGE>
EXHIBIT 12.1
HEALTH MANAGEMENT ASSOCIATES, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Three Months
Ended
Year Ended September 30, December 31,
1993 1994 1995 1996 1997 1997
<S> <C> <C> <C> <C> <C> <C>
Earnings: 56,439 81,730 104,249 138,411 178,309 40,885
Income before income taxes
Fixed charges, excluding capitalized
interest--see below 9,482 10,777 11,922 12,385 12,630 4,041
---------------------------------------------------
Earnings 65,921 92,507 116,171 150,796 190,939 44,926
===================================================
Fixed charges:
Interest expense 4,814 4,297 3,621 3,515 3,712 1,327
Interest income netted against
interest expense 1,360 2,708 4,082 3,508 2,437 894
Interest factor included in rent expense 3,308 3,772 4,219 5,362 6,481 1,820
---------------------------------------------------
Fixed charges, excluding
capitalized interest 9,482 10,777 11,922 12,385 12,630 4,041
Interest capitalized 0 0 0 0 500 0
---------------------------------------------------
Fixed charges 9,482 10,777 11,922 12,385 13,130 4,041
===================================================
Ratio of earnings to fixed charges 7.0 8.6 9.7 12.2 14.5 11.1
===================================================
</TABLE>
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Health Management
Associates, Inc. for the registration of $300,000,000 of debt securities and to
the incorporation by reference therein of our report dated October 24, 1997,
with respect to the consolidated financial statements and schedule of Health
Management Associates, Inc. included in its Annual Report (Form 10-K) for the
year ended September 30, 1997, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Atlanta, Georgia
February 23, 1998
<PAGE>
EXHIBIT 24.1
HEALTH MANAGEMENT ASSOCIATES, INC.
OFFICERS' AND DIRECTORS' POWER OF ATTORNEY
Know All Men By These Presents: That each of the undersigned, being an
Officer or a Director of HEALTH MANAGEMENT ASSOCIATES, INC., a Delaware
corporation, which corporation anticipates filing with the Securities and
Exchange Commission, under the provisions of the Securities Act of 1933, as
amended, a Registration Statement on Form S-3 for the registration of up to
$300,000,000 aggregate principal amount of debt securities, Does Hereby
constitute and appoint JOSEPH V. VUMBACCO, STEPHEN M. RAY, TIMOTHY R. PARRY and
SUSAN MASCETTE BRANDT, and each of them, the attorneys of the undersigned with
full power of substitution for and in the name, place and stead of the
undersigned:
To sign and file on behalf of the undersigned such Registration Statement
and any and all amendments, including post-effective amendments, to such
Registration Statement and exhibits thereto and any and all applications or
other documents to be filed with the Securities and Exchange Commission or any
securities commission of any state or other jurisdiction pertaining to the
securities covered or the transactions contemplated by said Registration
Statement, with full power and authority to do and perform any and all acts and
things whatsoever under and in accordance with the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder by said
Commission, and the securities laws of each state and other jurisdiction and the
rules and regulations promulgated thereunder, hereby ratifying and approving the
acts of such attorney or attorneys, or any such substitute or substitutes.
This Instrument may be executed in several counterparts, each of which shall
be an original but all of which together shall constitute one and the same
Instrument.
In Witness Whereof, each of the undersigned has hereunto set his hand and
seal as of the respective dates set forth below.
February 17, 1998 /s/ William J. Schoen
---------------------
William J. Schoen
Chairman, Chief Executive Officer and Director
February 17, 1998 /s/ Joseph V. Vumbacco
----------------------
Joseph V. Vumbacco
President and Chief Operating Officer
<PAGE>
February 17, 1998 /s/ Stephen M. Ray
------------------
Stephen M. Ray
Senior Vice President and Chief Financial Officer
February 17, 1998 /s/ Timothy R. Parry
--------------------
Timothy R. Parry
Vice President and General Counsel
February 17, 1998 /s/ Kent P. Dauten
------------------
Kent P. Dauten, Director
February 17, 1998 /s/ Robert A. Knox
------------------
Robert A. Knox, Director
February 17, 1998 /s/ Charles R. Lees
-------------------
Charles R. Lees, Director
February 17, 1998 /s/ Kenneth D. Lewis
--------------------
Kenneth D. Lewis, Director
February 17, 1998 /s/ W.E. Mayberry
-----------------
William E. Mayberry, M.D., Director
2
<PAGE>
State of Florida )
County of Collier ) ss.
On this 17th day of February, 1998, before me personally came WILLIAM J.
SCHOEN, to me known and known to me to be the individual described in, and who
executed the foregoing instrument, and he acknowledged to me that he executed
the same.
/s/ Mary M. Pirro
-----------------
Notary Public
State of Florida )
County of Collier ) ss.
On this 17th day of February, 1998, before me personally came JOSEPH V.
VUMBACCO, to me known and known to me to be the individual described in, and who
executed the foregoing instrument, and he acknowledged to me that he executed
the same.
/s/ Mary M. Pirro
-----------------
Notary Public
State of Florida )
County of Collier ) ss.
On this 17th day of February, 1998, before me personally came STEPHEN M.
RAY, to me known and known to me to be the individual described in, and who
executed the foregoing instrument, and he acknowledged to me that he executed
the same.
/s/ Mary M. Pirro
-----------------
Notary Public
State of Florida )
County of Collier ) ss.
On this 17th day of February, 1998, before me personally came TIMOTHY R.
PARRY, to me known and known to me to be the individual described in, and who
executed the foregoing instrument, and he acknowledged to me that he executed
the same.
/s/ Mary M. Pirro
-----------------
Notary Public
3
<PAGE>
State of Florida )
County of Collier ) ss.
On this 17th day of February, 1998, before me personally came KENT P.
DAUTEN, to me known and known to me to be the individual described in, and who
executed the foregoing instrument, and he acknowledged to me that he executed
the same.
/s/ Mary M. Pirro
-----------------
Notary Public
State of Florida )
County of Collier ) ss.
On this 17th day of February, 1998, before me personally came ROBERT A.
KNOX, to me known and known to me to be the individual described in, and who
executed the foregoing instrument, and he acknowledged to me that he executed
the same.
/s/ Mary M. Pirro
-----------------
Notary Public
State of Florida )
County of Collier ) ss.
On this 17th day of February, 1998, before me personally came CHARLES R.
LEES, to me known and known to me to be the individual described in, and who
executed the foregoing instrument, and he acknowledged to me that he executed
the same.
/s/ Mary M. Pirro
-----------------
Notary Public
State of Florida )
County of Collier ) ss.
On this 17th day of February, 1998, before me personally came KENNETH D.
LEWIS, to me known and known to me to be the individual described in, and who
executed the foregoing instrument, and he acknowledged to me that he executed
the same.
/s/ Mary M. Pirro
-----------------
Notary Public
4
<PAGE>
State of Florida )
County of Collier ) ss.
On this 17th day of February, 1998, before me personally came WILLIAM E.
MAYBERRY, to me known and known to me to be the individual described in, and who
executed the foregoing instrument, and he acknowledged to me that he executed
the same.
/s/ Mary M. Pirro
-----------------
Notary Public
5
